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Real Estate Law

Real Estate Law

Real Estate Law

We can you help you follow South Carolina Law when Buying or Selling Real Estate

The Supreme Court of South Carolina requires that certain real estate matters are to be conducted by attorneys licensed to practice law in South Carolina. These matters include the reporting, opinions and certifications related to status of titles to real estate; preparing necessary documents affecting a title to real estate; handling real estate and mortgage loan closings; recording of documents and disbursement of proceeds. Therefore, if you are purchasing or refinancing any property in South Carolina, our laws require you do so under the supervision of an attorney.

Protect your Real Estate investment under the law

Real estate is one of the most significant investments anyone ever makes. Whether you are buying or selling residential or commercial property, the reality is that you should do everything you can to protect that investment.

Your attorney at The Floyd Law Firm PC has the experience necessary to be able to effectively guide you through such a difficult and complex process. It is an essential first step in protecting your investment.

We stay informed and current with every update of the laws surrounding real estate transactions. Changes to laws and federal mortgage forms required under the Truth-in-Lending Act (TILA) and Real Estate Settlement and Procedures Act (RESPA) as TILA-RESPA Integrated Disclosure (TRID) rules can make the entire process of securing a mortgage and purchasing property complicated. We’ll go over the guidelines and standards for agent behavior related to disclosures, the types of facts that are required, and facts to be disclosed. The possible need of Flood Insurance is also important. You need to know when it is required, how the rates are determined, and how the National Flood Insurance Program works. It is our top priority to ensure that our clients’ real estate dollars are properly protected.

Legal services are required for Residential Real Estate Transactions

The sale or purchase of a home by the average person is usually the financial transaction of a lifetime. Legal obligations are involved from the negotiation, signing a proper purchase and sale contract, examination of the title, evaluation of the importance of any title defects, and the possible refusal of one party or the other to comply with the contract. We will help you throughout the process down to the closing statement, delivery of the documents, recording of the deed, and the completion of other related paperwork.

The buyer and the seller each should be represented by an attorney in order to be fully informed and to know the answers to questions such as:

  • Does the sales contract that is to be signed by buyer and seller cover every matter desired, or contain any clauses that might work against either party?
  • Will the property be the same, and in the same condition at the time of transfer, as it was at contract signing?
  • Has a survey been completed of the property and is a complete detailed and accurate plat available?
  • Is Title Insurance available, and is it really necessary?
  • Are there any title problems or defects that could affect the title to the property or your future sale of the property?
  • Are all possible assessments, liens, easements, or restrictions known about the property?
  • Are there zoning requirements or any restrictive covenants that affect your use of the property?
  • Are all funding, pay-off dates, and closing details under control and the closing documents properly prepared?
  • Does the attorney participate in every step of the transaction and personally discuss and counsel with the client about all of the details related to the transaction?

Residential Real Estate Services and Fees

The Floyd Law Firm PC will effectively guide you through all of the legal services prior to, or during the negotiation of a contract of sale between the Buyer and the Seller.

The fees of our office are based upon the work performed and are rendered on an hourly basis, adjusted for a variety of factors.

The services to be performed will be quoted, but the exact fee will not be known until completion of the work. Progress billings will be rendered as needed, but your payment may be deferred until closing.

The fee schedule does not include managing unusual matters such as complications caused by any of the following:

  • Contract Negotiations
  • Early and late possession
  • Private Sales
  • Unusual Land Trust Transactions
  • New Construction Estates
  • Condominium Document Defects Litigation
  • Escrow Closings
  • Installment Sales
  • Unusual Title exceptions
  • Divorce Settlements
  • Default or non-compliance
  • Gift or Estate Tax issues
  • Non-cooperation by other parties
  • Unusual Income Tax issues

Information About Title Insurance

When you buy a condominium, a home, any other type of building, or even vacant land – you must have a complete investigation made on every aspect of the property. Or, you may discover that the property you bought and paid for is not fully and actually yours at all.

After the investigation, you will need protection in the event that some point has been missed in the public records, or someone else makes a claim on the title to your property. A title insurance policy provides the protection.

The cost of title insurance on any piece of property is small when compared to the benefit and security it provides. Unlike other forms of insurance, there are no annual payments to keep the policy in force because you pay only one premium for coverage as long as you or your heirs own the property.

Title insurance helps you to know definitively is others may have “rights” in the property as well. There are mortgages and leaseholder rights, or liens due to unpaid taxes, lien claims to those whom the owner owes money, mining rights, oil rights, and even air rights. Anyone who has such a claim is, at least in a limited way, considered to be a part-owner. He or she cannot ordinarily be deprived of their interest except by having the claim settled or released. The property may be sold without their knowledge, but the claim is still there until satisfied. As a new owner you may know nothing about these risks, but you are still vulnerable to such claims on your property.

Some of the most serious hidden risks which are not revealed by the records or by an examination of the abstract – but are covered by a title insurance policy include:

Marital Status of Owner Incorrectly Given

Under the law, one spouse may have an interest in property owned individually by another spouse. An owner may say that he or she is single, although secretly married or perhaps divorced in another state, resulting in a claim by a spouse or former spouse whose existence was not suspected.

Undisclosed Heirs

When an owner dies and there is no Will, the courts must decide who the rightful heirs are. But even then, such a decision by the court may not be final or binding on any heir who was not notified of the proceeding. Even under a Will, the court may have to settle questions of interpretation of the Will. Cases of this kind include children born after the date of the Will and heirs overlooked due to incorrect probate proceedings.

Mental Incompetence or Minors

A transfer of property by a minor or a person adjudged to be mentally incompetent raises special problems. To be valid and binding on a minor or incompetent, the transaction must be made by guardians or appointed by the court. If a deed or release was executed by person who was a minor or under mental disability at the time, the transaction may be voidable or invalid.

Fraud and Forgery

The owner may have been fraudulently impersonated. Deeds, releases, or other documents may be forgeries.

Defective Deeds

A deed may have been delivered without the consent of the owner or after his or her death. A document may have been executed under an expired power of attorney. The name of the grantee may have been inserted in the deed after its delivery. The officer of a corporation may not have been properly empowered to act. In any such case, the action may result in loss of title.

Confusion Due to Similar or Identical Names

Despite a careful investigation to prevent it, some confusion of identity is possible. For example, a person’s title to his or her land, established thirty years ago, may still be paid under that name; but the lawsuits, marriages, divorces, wills and other actions may be under a simplified family name – such as Johnson, Johnston, Jonson, or even Jansen. Or two members of the same family might have the same name, as in the case of a father and son, and the title may be in one while the deed is executed by the other who has no title.

Errors in Records or Clerical Work

An important document could be missed while searching, or entries or indexing in records may have been made in error. Clerical mistakes are infrequent, but they do happen.

Is it enough that the Lender has a Mortgage Title Insurance Policy on the Property?

The lender – any person or financial institution that lends money on real estate – also wants their investment protected. Title Insurance companies provide mortgage title insurance policies to assure the lender that the mortgage is a valid first lien protected against hidden as well as known defects in the title as insured. Such a policy affords that the lender can be certain about the title – which may be acquired in the event of a foreclosure.

Unfortunately, this does not benefit you as the owner in the event of a claim, as mortgage title insurance protects only the lender’s interest in the property, not yours.

Holding Title with a Spouse

A misconception exists that the title to a house or other property should be held by both the husband and wife with rights of survivor-ship instead of a tenancy in common. The answer depends on the facts and circumstances of each family’s situation. In other words, what is right for you might not work for someone else.

A tenancy in common exists where more than one person owns real estate titled in each of their names, much as a married couple might do. Under this form of ownership, each owner owns an undivided interest in the property. This means that each is entitled to possession of the entire piece of property concurrently with the other owner. However, each owner is only entitled to his or her pro rata share of the value of that property.

Any tenant in common may sell his or her share or it may pass by will or intestacy at his or her death. One tenant in common may sell or give at death his or her share of the tenancy in common to anyone, including the other tenant in common. This means that the share of one tenant in common will not automatically pass to the other at death. If there are only two tenants in common, and one gives his or her share to the other, the other becomes the outright owner.

There is a way to allow such an interest in property to pass automatically at the death of the first owner to the survivor. This is known as a joint tenancy with right of survivorship. Holding property as joint tenants with rights of survivorship may alter the parties’ rights in several significant ways.

First, a person holding as a joint tenant with right of survivorship can not leave his or her interest in the property to anyone else in his or her will. The property, at the death of one joint tenant, automatically passes to the other tenant.

Secondly, if a person holds title to property with right of survivorship, he or she may only transfer or sell a life estate in said property. In other words, the only way to convey the complete rights of property held as joint tenants with rights of survivorship is by deed containing signatures of both or all of the joint tenants.

Aside from these two differences, there may also be important estate planning issues and consequences that may significantly affect your choice between the two forms of ownership. Please consult with one of our experts at Floyd Law if you have any questions about the proper form of ownership for your situation.

Real Estate Law Attorneys serving Surfside Beach, Myrtle Beach and throughout South Carolina

At The Floyd Law Firm PC, our firm is committed to ensuring that our clients’ real estate transactions go as smoothly as possible. Protecting your transaction is our focus. It is our job to know everything the law requires and to make sure everything is in order so that you can make the most of the opportunity you have. Our attorneys bring together more than 100 years of combined experience. That level of experience – and our team approach to the law – allows us to deliver results that our clients have been depending on since 1973.

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